Judge: Katherine Chilton, Case: 21STLC05196, Date: 2023-02-16 Tentative Ruling

Case Number: 21STLC05196     Hearing Date: February 16, 2023    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSITION; REQUEST FOR MONETARY SANCTIONS

MOVING PARTY:   Defendants Geoffrey Neal Walker, et al.

RESP. PARTY:         None

MOTION TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSITION;

REQUEST FOR MONETARY SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

The hearing on the Motion to Compel Plaintiff’s Attendance and Testimony at Deposition filed by Defendants Geoffrey Neal Walker, et al. is CONTINUED to MARCH 16, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Defendants must properly serve Plaintiff with the moving papers and notice of continuance.  Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK[1]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of February 8, 2023.                       [   ] Late                      [X] None

REPLY:                     None filed as of February 8, 2023.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 15, 2021, Plaintiff Leisly Cruz-Gomez (“Plaintiff”) filed an action against Defendants Geoffrey Neal Walker (“Geoffrey”) and Lee Walker (“Lee”), (collectively, “Defendants”), for motor vehicle negligence, arising out of an alleged automobile accident that took place on August 22, 2019.  On November 23, 2022, Defendants filed a joint Answer to the Complaint.

On December 27, 2021, and January 25, 2022, Plaintiff filed Notices of Related Case.

On March 22, 2022, Joseph D. Ryan, counsel for Plaintiff, filed a Motion to be Relieved as Counsel.  On June 14, 2022, the Court granted counsel’s Motion and signed the Order relieving him as counsel of record for Plaintiff.  (6-14-22 Minute Order; 6-14-22 Order.)

On October 25, 2022, Defendants filed the instant Motion for Order Compelling Plaintiff’s Attendance and Testimony at Deposition and Request for Sanctions (“Motion”).  No opposition was filed.  On December 21, 2022, the Court continued the hearing on the Motion to allow Defendants an opportunity to properly serve Plaintiff with the moving papers.  (12-21-22 Minute Order.)

On November 1, 2022, Defendants filed a Motion to Continue Trial Date and All Related Discovery Dates.  On December 21, 2022, the Court denied Defendants’ Motion to Continue Trial.  (12-21-22 Minute Order.)  However, the Court, on its own motion, continued the trial date to June 20, 2023, along with all motion and discovery cut-off dates.  (Ibid.)

No additional papers have been filed since the Court’s order on December 21, 2022.

II.              Legal Standard

Code of Civil Procedure § 2025.450(a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

            The motion shall “(1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “(2) be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc. § 2025.450(b)(2).)

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code. Civ. Proc., § 2025.450(g)(1).)

III.            Discussion

A.    Motion to Compel

Defendants move to compel Plaintiff to attend and testify at a deposition scheduled according to notices served on December 10, 2021, and July 28, 2022.  (Mot. pp. 1-2.)

On December 10, 2021, Defendants served Plaintiff with a Notice of Taking Deposition scheduled for March 23, 2022.  (Fakih Decl. ¶ 2; Ex. A.)  On March 17, 2022, Plaintiff’s counsel informed defense counsel that he was unable to contact Plaintiff and planned to withdraw as counsel.  (Ibid. at ¶ 3, Ex. B.)  Plaintiff’s counsel filed a Motion to be Relieved as Counsel on March 22, 2022, which was granted on June 14, 2022.  (Ibid. at ¶¶ 4, 6.)  Plaintiff did not appear at the noticed deposition on March 23, 2022.  (Ibid. at ¶ 5.)

On July 28, 2022, Defendants served Plaintiff with another Notice of Taking Deposition, scheduled for September 15, 2022, via mail.  (Ibid. at ¶ 7, Ex. C.)  On September 14, 2022, defense counsel attempted to contact Plaintiff, who was self-represented at that time; however, the first phone number available to defense counsel was disconnected, and the second phone number was not accepting calls or voicemails.  (Ibid. at ¶ 8.)  Defense counsel sought another way to contact Plaintiff by communicating with her former counsel; however, former counsel indicated that he also had a difficult time communicating with Plaintiff.  (Ibid.)  On September 15, 2022, defense counsel again called Plaintiff and received a message that the voicemail on the phone was not set up.  (Ibid. at ¶ 9.)  Plaintiff did not appear at the deposition scheduled for September 15, 2022, and defense counsel obtained a certificate of nonappearance.  (Ibid. at ¶ 10, Ex. D.)

As of the date of the instant Motion, Plaintiff has not communicated with defense counsel.  (Ibid. at ¶¶ 11-12.)

Defendants have submitted evidence that they served a deposition notice on Plaintiff; however, Plaintiff did not serve a valid objection and did not appear at the deposition.  Defendants served another notice of a scheduled deposition and attempted to contact Plaintiff on several occasions; however, they could not find a way to communicate with Plaintiff.  Plaintiff did not object and did not attend the second noticed deposition.  Thus, the Court finds that Defendants properly served notices of deposition on Plaintiff and attempted to meet and confer with Plaintiff.

However, on December 21, 2022, the Court noted that self-represented Plaintiff had been served with the moving papers via electronic mail, in violation of Code of Civil Procedure § 1010.6.  (12-21-22 Minute Order.)  The Court continued the hearing on the Motion and ordered Defendants to properly serve Plaintiff with the moving papers.  (Ibid.)

            Following the December 21, 2022, Order, Defendants have not filed any papers indicating that Plaintiff has been properly served with the moving papers or served with a notice of continuance.  Accordingly, the Court continues the hearing on the Motion one final time to provide Defendants with the opportunity to properly serve Plaintiff with the moving papers and a notice of continuance of the hearing on the instant Motion.

B.    Sanctions

            Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.  A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery.  (Code Civ. Proc., § 2023.010(d).)  In addition, a court shall impose monetary sanctions if a motion to compel a deposition is granted unless “the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code. Civ. Proc. § 2025.450(g)(1).)

            Defendants request monetary sanctions in the amount of $461.65 to be paid by Plaintiff, as follows: $400.00 for attorney’s fees for two hours of preparing and filing the instant Motion, at a rate of $200.00 per hour, and $61.65 in filing fees.  (Fakih ¶ 13.)

Given that the Court continues the hearing on the Motion, the matter of sanctions will be addressed at the next scheduled hearing.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on the Motion to Compel Plaintiff’s Attendance and Testimony at Deposition filed by Defendants Geoffrey Neal Walker, et al. is CONTINUED to MARCH 16, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Defendants must properly serve Plaintiff with the moving papers and notice of continuance.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.